Dorothy Cole v. Lynwood Unified School Dist. , 678 F. App'x 595 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOROTHY L. COLE, No. 15-56120
Plaintiff-Appellant, D.C. No.
2:13-cv-08658-GW-RZ
v.
LYNWOOD UNIFIED SCHOOL MEMORANDUM *
DISTRICT, a Public Entity,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted February 6, 2017**
Pasadena, California
Before: KLEINFELD, IKUTA, and NGUYEN, Circuit Judges.
Dorothy Cole alleges that the Lynwood Unified School District
(“Lynwood”) improperly terminated her and denied her promotions because of her
race, age, and disability, and in retaliation for lodging complaints. The district
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
court granted summary judgment in favor of Lynwood. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
1. Cole’s California Fair Employment and Housing Act (“FEHA”) claims
are time-barred. See Cal. Gov’t Code § 12960(d) (establishing a limitations period
of one year plus ninety days). She was terminated on February 28, 1999 and
denied promotions in February 2009 and June 2010. Because she did not file her
Department of Fair Employment and Housing complaint within one year plus
ninety days of these adverse employment decisions, her FEHA claims are
untimely.
2. Cole’s racial discrimination claim under 42 U.S.C. § 1981 is also time-
barred. See Lukovsky v. City & County of San Francisco, 535 F.3d 1044, 1048
(9th Cir. 2008) (noting that “federal courts borrow the forum state’s limitations
period for personal injury torts” for § 1981 discrimination claims); Krupnick v.
Duke Energy Morro Bay, L.L.C., 9 Cal. Rptr. 3d 767, 768 (Ct. App. 2004) (noting
the two-year statute of limitations for personal injury). Because Cole did not file
her complaint within two years of being denied the promotions, her § 1981 claim
based on racial discrimination is untimely.
3. Even assuming Cole’s retaliation claim under 42 U.S.C. § 1981 is timely,
the claim fails on the merits. Cole contends that she was not promoted because she
complained to her teacher’s union and the school district. Her complaints,
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however, were lodged after her rejections for the director and coordinator
positions. Therefore, Cole cannot establish a prima facie case of retaliation. See,
e.g., Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir. 2006) (explaining that in order to
establish a prima facie case of retaliation, a plaintiff must show a causal link
between the protected activity and an adverse employment action).
4. Even assuming Cole’s retaliation claim under the Rehabilitation Act is
timely, the claim fails on the merits. Lynwood asserts that it terminated Cole
pursuant to the then-existing California Education Code. Since Lynwood has
advanced a legitimate reason for terminating Cole, the burden shifts to Cole to
explain why that reason was pretextual. See Chuang v. Univ. of Cal. Davis, Bd. of
Trs., 225 F.3d 1115, 1124 (9th Cir. 2000) (“[P]laintiff must show that the
articulated reason is pretextual ‘either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by showing
that the employer’s proffered explanation is unworthy of credence.’” (quoting Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981))). Cole fails to point
to any evidence or explain how any alleged discrimination led to the adverse
employment decision, and therefore summary judgment in favor of Lynwood was
properly granted.
AFFIRMED.
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